Case: 10-40707 Document: 00511870971 Page: 1 Date Filed: 05/30/2012
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
May 30, 2012
No. 10-40707 Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff - Appellee
v.
MARK ANTHONY OWENS; KIMBERLY MICHELLE KIRKWOOD,
Defendants - Appellants
Appeals from the United States District Court for the
Eastern District of Texas
Before JONES, Chief Judge, and OWEN and HIGGINSON, Circuit Judges.
STEPHEN A. HIGGINSON, Circuit Judge.
Mark Anthony Owens and Kimberly Michelle Kirkwood were convicted of
bank robbery by force or violence and aiding and abetting the commission of
bank robbery by force or violence, in violation of 18 U.S.C. §§ 2113(a), 2113(d),
and 2. Both Owens and Kirkwood appeal the denial of their motions to sever
and argue that there is insufficient evidence to support the guilty verdict.
Additionally, Kirkwood appeals the denial of her motion for a mistrial. We affirm
their convictions. Because our holding centers on the sufficiency of the evidence,
a detailed examination of the evidence follows.
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I. Facts and Proceedings
Kirkwood worked as a bank teller at Texas State Bank’s Phelan Boulevard
branch in Beaumont, Texas, and lived with her boyfriend of three years, Owens.
On Friday, September 7, 2007, Kirkwood requested additional money for her
cash drawer. Normally, bank tellers had approximately $25,000 in each of their
cash drawers. Using bank procedures, Kirkwood received an additional $58,000,
increasing the total in her cash drawer to approximately $89,000.
On Saturday, September 8, 2007 at approximately 8:20 a.m., Kirkwood
picked up her co-worker, Jessie Jeanis, for work. Kirkwood and Jeanis were the
only bank employees scheduled to work that day. Soon after they arrived at the
bank and Kirkwood entered the building, a black Chevy S-10 pick-up truck
parked near Kirkwood’s car where Jeanis was sitting. A man dressed in a black
suit, black floppy hat, black gloves, black sunglasses, and black shoes exited the
truck and covered his face with black cloth. Kirkwood opened the door to the
bank and stood with the door open; Jeanis exited Kirkwood’s car and entered the
bank. The man entered behind Jeanis, grabbed Jeanis’s hair, and held an object
to Jeanis’s back that Jeanis could not identify but described as hard, pointed,
and metallic. The man instructed Kirkwood to fill his duffle bag with money.
Kirkwood walked to the vault and emptied $84,755 from her cash drawer into
the bag, including tagged bills. The man ordered the two women to lie on the
floor and count to one hundred. Jeanis got up when the door closed behind the
man despite Kirkwood telling her to stay on the ground as the robber had
instructed. She saw the truck driving away and wrote down its license plate
number on her checkbook register. Jeanis gave Kirkwood the checkbook register
and told her to call 911 while Jeanis called their manager.
When the police arrived, they interviewed Kirkwood and Jeanis. The
women could not identify the robber but gave the police the license plate number
of the black Chevy S-10 pick-up truck. Jeanis told the officers that one of the
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letters written on the checkbook register had been changed from a “Y” to a “9.”
The police tracked the license plate number containing the “Y” to Anthony
English. Upon arriving at English’s home, the police discovered a motorcycle
registered to Kirkwood in English’s front yard that was still warm from being
ridden. Earlier, Owen was seen driving that motorcycle to English’s home.
When the police found English, he reported his truck stolen. No evidence of the
robbery was discovered during searches of English’s home and the home where
English had slept on the night of September 7.
Owens and English were close friends. English later told the agents that
although he did not know who borrowed his truck on September 8, Owens
commonly borrowed English’s truck and left the motorcycle at English’s house.
However, Owens only would borrow the truck with English’s permission, and no
one asked permission to borrow English’s truck on September 8. On September
7, English had left his keys on top of his entertainment center when he was
napping, numerous people from the neighborhood were at his home, and his
front door was unlocked.
During this investigation, Owen and Kirkwood consented to be
interviewed by the FBI. Kirkwood told agents that she thought Owens was at
their home and at the L.L. Melton YMCA during the time of the robbery. Owens
reported that he was working out at the YMCA beginning at approximately 8:20
a.m. on September 8 and that Kirkwood called to tell him what had happened
to her at the bank. However, a YMCA employee (Courtney Moore) and a YMCA
guest (Daisy Johnson) told the FBI that Owens arrived at the YMCA around
9:15 a.m. Moore testified that Owens tried to bribe her to sign him in at an
earlier time. However, Moore originally confirmed Owens’s version of events,
and other YMCA employees confirmed Owens’s version of events.
Clothing from Kirkwood and Owens’s home was sent to the FBI lab but
could not be linked to the robbery. No forensic evidence could be recovered from
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the bank that connected Kirkwood or Owens to the robbery. The money from the
robbery, including tagged bills, was never found.
On September 19, 2007, a federal grand jury returned an indictment
against Kirkwood alleging that she committed bank robbery by force or violence
and aided and abetted the commission of bank robbery by force or violence, in
violation of 18 U.S.C. §§ 2113(a), 2113(d), and 2, and possessed a firearm in
relation to a crime of violence, in violation of 18 U.S.C. §§ 2113, 924(c)(1), and
924(c)(2). A superseding indictment was returned on August 6, 2008 alleging the
same violations and joining Mark Anthony Owens as a co-defendant in the case.
Count two, possession of a firearm in relation to a crime of violence, was
dismissed by the government as to both defendants before trial. Both
defendants pleaded not guilty and filed motions to sever, which were denied by
the district court in an 8-page order on January 7, 2010.
On January 13, 2010, a jury found Kirkwood and Owens each guilty of
count one of the indictment, committing bank robbery by force or violence and
aiding and abetting the commission of bank robbery by force or violence, in
violation of 18 U.S.C. §§ 2113(a), 2113(d), and 2. Owens was sentenced to 121
months imprisonment, and $84,755 in restitution was ordered. Kirkwood was
sentenced to 110 months imprisonment, and $84,755 in restitution was ordered.
The current appeal was timely filed.
II. Motions to Sever
Owens and Kirkwood argue that the district court abused its discretion in
denying each of their motions to sever. According to Fed. R. Crim. P. 14(a), “[i]f
the joinder of offenses or defendants in an indictment . . . appears to prejudice
a defendant . . . the court may order separate trials of counts, sever the
defendants’ trials, or provide any other relief that justice requires.” The
Supreme Court has held that, “a district court should grant a severance under
Rule 14 only if there is a serious risk that a joint trial would compromise a
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specific trial right of one of the defendants, or prevent the jury from making a
reliable judgment about guilt or innocence.” Zafiro v. United States, 506 U.S.
534, 539 (1993). “There is a preference in the federal system for joint trials of
defendants who are indicted together.” Id. at 538.
This court reviews a denial of a motion for severance for abuse of
discretion. United States v. Lewis, 476 F.3d 369, 383 (5th Cir. 2007) (citing
United States v. Sudeen, 434 F.3d 384, 387 (5th Cir. 2005)). “Historically, this
court has been reluctant to vacate a conviction because the district court refused
to sever a trial. The defendant must ‘isolate events occurring in the course of the
trial and then . . . demonstrate that such events caused substantial prejudice.’”
Lewis, 476 F.3d at 384 (citations omitted). To reverse the denial of a motion to
sever, an appellant must show “specific compelling prejudice.” Id. at 383 (citing
Sudeen, 434 F.3d at 387). “To prevail, the defendant must show that: (1) the
joint trial prejudiced him to such an extent that the district court could not
provide adequate protection; and (2) the prejudice outweighed the government’s
interest in economy of judicial administration.” United States v. Peterson, 244
F.3d 385, 393 (5th Cir. 2001) (citations and internal quotation marks omitted).
The defendant also must show that the district court’s instructions to the jury
did not adequately protect him or her from any prejudice resulting from the joint
trial. United States v. Posada-Rios, 158 F.3d 832, 863 (5th Cir. 1998) (citing
United States v. Mitchell, 31 F.3d 271, 276 (5th Cir. 1994)).
Both Kirkwood and Owens assert that their close relationship with the
other would cause the jury to impute the other’s guilt upon them and that they
would have been acquitted if tried separately. Specifically, they allege that the
government’s theory of the case (that Kirkwood used her employment at the
bank to help Owens rob the bank) prevented the jury from evaluating the
evidence against each of them separately. Owens explains that, “[i]t is more
likely than not that the jury convicted each defendant based, not on any evidence
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against him or her individually, but on the entire evidence presented in this case
as a whole against both defendants and on the fact that each was a co-defendant
to the other.”
However, “[a] spillover effect, by itself, is an insufficient predicate for a
motion to sever.” United States v. Bieganowski, 313 F.3d 264, 287 (5th Cir. 2002)
(citing United States v. Williams, 809 F.2d 1072, 1085 (5th Cir. 1987)
(“[A]dditional evidence adduced at joint trials does not constitute compelling
prejudice by itself.”)). In the present case, the district court instructed the jury
that, “[t]he case of each defendant and the evidence pertaining to that defendant
should be considered separately and individually. The fact that you may find
one of the defendants guilty or not guilty should not control your verdict as to
any other defendant.” Because it is presumed that juries follow the instructions
the court gives them, we assume that the evidence against each defendant was
considered separately and individually. United States v. Tarango, 396 F.3d 666,
677 (5th Cir. 2005) (citation omitted); Richardson v. Marsh, 481 U.S. 200, 211
(1987). Neither Kirkwood nor Owens has offered any specific argument, other
than conclusory statements, that the jury instruction given by the district court
was insufficient.
This court has held numerous times that the relationship between co-
defendants does not require reversing the denial of a motion to sever. See, e.g.,
United States v. Nguyen, 493 F.3d 613, 625 (5th Cir. 2007) (concluding that the
district court did not abuse its discretion when it denied a motion to sever filed
by a defendant who was being tried with his twin brother); United States v.
Solis, 299 F.3d 420, 441 (5th Cir. 2002) (rejecting the defendant’s argument that
“he was convicted on guilt by association” because he was tried with his brother);
United States v. Bermea, 30 F.3d 1539, 1572–73 (5th Cir. 1994) (determining
that the district court did not abuse its discretion by denying the appellant’s
motion to sever even though the appellant was tried with three family members,
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one of whom pleaded guilty part way through the trial); United States v. Partin,
552 F.2d 621, 640–41 (5th Cir. 1977) (affirming the denial of a motion to sever
where the defendant was tried with his father-in-law and brother); see also
United States v. Lira, 262 F. App’x 653, 655 (5th Cir. 2008) (unpublished)
(holding that even if some of the evidence against the appellant’s husband was
not relevant to the case against her, the district court did not abuse its discretion
by denying the appellant’s motion to sever her case from her husband’s case
because “the district court instructed the jury to give separate consideration of
the evidence as to each defendant”). The fact that Kirkwood and Owens were
living together and had been dating for three years at the time of the robbery is
insufficient to warrant reversing the district court’s ruling.
Additionally, Kirkwood argues that she was further prejudiced by her joint
trial with Owens because Owens would have testified at her trial if their cases
had been severed. Kirkwood explains that Owens had prior criminal convictions
and a pending deferred adjudication that prevented him from testifying on her
behalf at their joint trial. In order for Kirkwood to obtain a severance based on
her desire to have Owens testify in her defense, she needed to establish: (1) a
bona fide need for the testimony; (2) the substance of Owens’s testimony; (3) the
exculpatory effect of Owens’s testimony; and (4) an indication that Owens would
testify if the trial was severed. See Nguyen, 493 F.3d at 625 (citing United States
v. Kane, 887 F.2d 568, 573 (5th Cir. 1989); United States v. Nutall, 180 F.3d 182,
187 (5th Cir. 1999)). Because Kirkwood has not demonstrated that Owens would
have testified if the trial had been severed, we need not reach the other three
prongs of this test. Without an affidavit from Owens or similar proof, Kirkwood
cannot establish that Owens would have testified if his trial had been severed
from Kirkwood’s trial. See id. (citing United States v. Sparks, 2 F.3d 574, 583 &
n.10 (5th Cir. 1993); United States v. Neal, 27 F.3d 1035, 1047 (5th Cir. 1994)).
Kirkwood has not supplied such an affidavit. Kirkwood only provided an
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affidavit from her attorney as evidence of Owens’s willingness to testify. A
statement from a defendant’s attorney is insufficient to establish that the
defendant’s co-defendant would be willing to testify or the substance of such
testimony. Id. (citing United States v. Williams, 809 F.2d 1072, 1084 (5th Cir.
1987)). Kirkwood’s allegations that Owens “likely” or “possibly” would have been
available to testify if he were tried before Kirkwood are insufficient to
demonstrate that her motion to sever should have been granted. See id. (citing
Sparks, 2 F.3d at 583 & n.10; Neal, 27 F.3d at 1047).
Finally, Kirkwood argues that she was prejudiced by the joint trial because
evidence existed against Owens that was unrelated to Kirkwood and the specific
crime charged. The jury heard about Owens’s “extensive criminal background,”
that Owens was required to perform community service, and Owens’s “weak and
easily disproved alibi testimony.” However, we have held that, “severance is
required on the basis of a disparity in the evidence only in the most extreme
cases.” United States v. Rocha, 916 F.2d 219, 229 (5th Cir. 1990). “[C]ompelling
prejudice is not shown if it appears that, through use of cautionary instructions,
the jury could reasonably separate the evidence and render impartial verdicts
as to each defendant.” United States v. Erwin, 793 F.2d 656, 665 (5th Cir. 1986)
(citation omitted).1 In the present case, the jury was properly instructed that it
should evaluate the evidence against Kirkwood and Owens separately. As noted
1
Although we held in Erwin that the district court abused its discretion by denying a
motion to sever as to one defendant, Grace Davis, and that the case was “extremely close” as
to Davis’s co-defendants, Erwin involved the admission of evidence of more egregious crimes
committed by members of the conspiracy (“two kidnappings, two beatings and one killing”)
than those charged in the case (drug-related activities, counterfeiting, and perjury). 793 F.2d
at 666. Error was found in Davis’s case because “[t]he charges against her were already only
peripherally related to those alleged against the other appellants” and “it became increasingly
apparent that very little of the mountainous evidence was usable against her, and almost none
of it applied directly.” Id. In the instant case, Kirkwood was tried for the same charge
stemming from the same incident as Owens, Kirkwood had no conspiratorial connection to
Owens’s past crimes, and Owens’s past crimes were less severe than the current charge,
armed robbery.
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earlier, juries are presumed to follow the instructions given to them by the
district court. Tarango, 396 F.3d at 677 (2005) (citation omitted); Marsh, 481
U.S. at 211. In light of the cautionary jury instruction given by the district
judge, Kirkwood has offered insufficient evidence of “specific and compelling
prejudice” for us to conclude that the district court abused its discretion by
denying her motion to sever. See Erwin, 793 F.2d at 665–66 (citations omitted).
Because neither Owens nor Kirkwood has demonstrated specific
compelling prejudice from the denial of their motions to sever, we conclude that
the district court did not abuse its discretion denying Kirkwood’s and Owens’s
motions to sever.
III. Sufficiency of the Evidence
Kirkwood and Owens assert that there was insufficient evidence to sustain
their convictions because the government failed to prove that each of them
participated in the September 8 robbery of Texas State Bank. They do not
contest that the robbery occurred, but instead, that they were involved. Each
argues that the government only established that they could have robbed the
bank and that, at best, “the evidence supports the government’s theory of guilt
equally to the theory of innocence.”
To determine whether there was sufficient evidence to sustain a
conviction, we ask whether a rational trier of fact could find proof of the essential
elements of the crime beyond a reasonable doubt when viewing the evidence and
drawing all inferences in favor of the verdict. Jackson v. Virginia, 443 U.S. 307,
319 (1979) (citation omitted); United States v. Rasco, 123 F.3d 222, 228 (5th Cir.
1997) (citations omitted). In doing so, we do not reweigh the evidence or assess
the credibility of witnesses. Rasco, 123 F.3d at 228. This standard does not
change regardless of whether a conviction is based on direct or circumstantial
evidence. United States v. Delagarza-Villarreal, 141 F.3d 133, 139 (5th Cir.
1997).
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A. Kirkwood
Kirkwood argues that there is insufficient evidence to support her
conviction because “alternative explanations are equally plausible for each act
relied upon by the Government to prove Kirkwood’s guilt.” However, when we
conduct a review of the sufficiency of the evidence, we must draw all inferences
and view all evidence in favor of the government. See Rasco, 123 F.3d at 228.
There is sufficient evidence against Kirkwood for a reasonable jury to find
her guilty beyond a reasonable doubt. The day before the robbery Kirkwood
requested additional money for her cash drawer. Although each of the two
tellers was only supposed to know half the combination to the bank’s dual-
combination vault, Kirkwood was able to open the vault door for the robber
because she, unlike Jeanis, knew both combinations. A reasonable jury could
have believed that Kirkwood conspired with the robber, obtained both
combinations, and made sure that there was almost $64,000 of additional money
in her drawer at the time of robbery.
In addition, Kirkwood arrived early at the bank on the day of the robbery.
Such an early arrival would ensure that Jeanis and she would be the only two
people in the bank at the time of the robbery. Once at the bank, Kirkwood failed
to follow the bank’s security procedures when she held the door open for Jeanis
rather than signaling to Jeanis that it was safe for Jeanis to enter the bank.
Procedure dictated that one employee enter the bank and signal to the other
employee that it was safe to enter.
The government also presented evidence that a reasonable jury could
interpret as evidence of Kirkwood taking steps to conceal the robber’s identity
after the robbery. According to Jeanis,2 Kirkwood told Jeanis to follow the
2
Because the government almost entirely bases the support for Kirkwood’s conviction
on the testimony of Jeanis and “we must accept credibility choices that support the jury’s
verdict,” United States v. Guerrero, 169 F.3d 933, 939 (5th Cir. 1999), we assume that the jury
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robber’s instructions to stay on the ground after the robber exited the bank. As
the government argued, the jury could reasonably have interpreted Kirkwood’s
statement as an attempt to prevent Jeanis from seeing the truck’s license plate.
Next, a reasonable jury could have inferred that Kirkwood did not relay to the
911 dispatcher the license plate number Jeanis gave Kirkwood. Though
Kirkwood explains that (1) Jeanis and the dispatcher were talking to Kirkwood
at the same time during the call, (2) Kirkwood was upset, and (3) Kirkwood gave
the license plate number to the police when they arrived at the bank, the jury
could have inferred, as the government argued, that Kirkwood was stalling to
allow the robber to flee.
Finally, Kirkwood’s actions and statements relating to Owens and the
robbery could be inferred to be incriminating. Kirkwood testified that she heard
the robber speak, did not recognize his voice, and was sure that it was not
Owens’s voice, even if disguised. In fact, Kirkwood testified that Owens was not
the robber. In light of the evidence described below that Owens was the robber,
however, as well as what Kirkwood acknowledges to be his “weak and easily
disproved alibi testimony,” this testimony could lead a reasonable jury to
conclude that Kirkwood was untruthful. A rational jury could conclude that
Kirkwood should have recognized Owens’s voice considering that (1) she had
been dating Owens for three years, (2) her name was on the title of Owens’s
motorcycle, and (3) she lived with Owens at the time of the robbery. Id.
Furthermore, Kirkwood made and received a number of calls to and from her
boyfriend, Owens, and his best friend, English, in the week before the robbery,
including receiving but not answering a call from English the morning of the
robbery. Although mere association or “a climate of activity that reeks of
something foul” is insufficient to establish guilt, United States v. Jackson, 700
believed Jeanis was credible. See id.
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F.2d 181, 185 (5th Cir. 1983) (citations and internal quotation marks omitted),
Kirkwood’s actions and statements relating to Owens are relevant to the
government’s theory of the case that the robbery was an “inside job.”
Notably, the jury heard Kirkwood’s extensive testimony that she did not
rob, and chose not to accept her version of events. Notably also, Kirkwood
sought relief, alleging insufficiency pursuant to Fed. R. Crim. P. 29, directly from
the district court. Having presided over this trial, in its firsthand demeanor and
credibility position, the district court elaborated reasons and did not grant Rule
29 relief. Viewed in the light most favorable to the verdict, there was sufficient
circumstantial evidence for the jury to reasonably find Kirkwood guilty beyond
a reasonable doubt.
B. Owens
Owens argues that there was insufficient evidence to convict him because,
“[n]ot a single person identified Owens, found money from the offense connected
with Owens, found clothes or physical evidence associated with the offense
connected to Owens, or testified to inculpatory statements by Owens.”
However, there is sufficient circumstantial evidence to sustain the jury’s
verdict of guilt. See Delagarza-Villarreal, 141 F.3d at 139. Kirkwood
acknowledged that Owens was familiar with Texas State Bank’s procedure for
opening the Phelan branch and knew when Kirkwood left to pick up Jeanis early
in the morning of September 8. Significantly, Courtney Moore and Daisy
Johnson testified that Owens did not enter the YMCA, where he claimed he was
during the robbery, until around 9:15 a.m. Moore even stated that Owens
offered her money to sign him into the YMCA so it would appear as if he arrived
at the YMCA at 8:00 a.m.3 Randolph Washington testified that someone took
3
Although there was other testimony, for example from Gabriel Wells, that Owens was
at the YMCA before 8:00 a.m., we credit the evidence in favor of the verdict when such a
contradiction exists. Jackson, 443 U.S. at 318 (citations omitted); Rasco, 123 F.3d at 228
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English’s truck between 5:15 a.m. and 6:00 a.m. on September 8 and that he saw
Owens arrive at English’s house on his motorcycle with a black backpack just
before the police arrived at English’s house (after the robbery and about twenty
minutes before Owens entered the YMCA on foot). Jeanis and Kirkwood told
investigators that the bank robber carried a black duffel bag. Anthony English,
who owned the truck the government identified as the getaway truck, testified
that Owens commonly borrowed English’s truck and that he had left his keys on
his entertainment center and left his door unlocked on September 7 while he
napped. English’s truck was discovered abandoned and covered with a tarp near
Owens’s former apartment. Owens’s height and weight match the description
of the robber that both Kirkwood and Jeanis gave to the police.4
Owens argues that the facts of the instant case are similar to the facts of
United States v. Gandolfo, 577 F.2d 955 (5th Cir. 1978), where we held that the
evidence was insufficient to uphold the conviction of one defendant, Ritter. In
Gandolfo, we held that there was insufficient evidence to convict Ritter because
multiple witnesses gave descriptions of the robbers that were extremely general
and two witnesses could not identify Ritter as Gandolfo’s confederate. Id. at
958–59. The strongest evidence against Ritter was that (1) he knew Gandolfo,
(2) he fit the general physical characteristics of one of the masked robbers and
an individual who rented a motel room and had a key made near the bank before
the robbery, and (3) he made a large payment to bail Gandolfo’s girlfriend out of
jail after the robbery although he was receiving unemployment compensation
(citations omitted). Although the jury could have accepted Owens’s verison of events that
Owens had Moore alter the logs so that it would appear that he arrived in time to meet the
requirements of his court-mandated community service, we view all inferences in favor of the
verdict and thus assume that the jury believed the government’s version of events, that Owens
bribed Moore in order to establish a false alibi for the robbery.
4
Anthony English did not match the description of the robber because he was
approximately 300 pounds according to Kirkwood.
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before the robbery. Id. We noted that the case was “wholly lacking” in “the
evidence, which is so reassuring to finders of fact and appellate courts, such as
fingerprints, a positive identification, possession of the bank’s bait money or a
confession or admission.” Id. at 959. Ultimately, we concluded that:
Viewing the government’s case in its most favorable light, no
witness or combination of witnesses either places Ritter in the
savings and loan or otherwise establishes his guilt of the robbery for
which he was convicted. Although his conduct and his association
with Gandolfo is highly suspect vis-a-vis the bank robbery, the links
are too tenuous and the gaps are too large to conclude that a
reasonable mind could find Ritter guilty beyond a reasonable doubt.
Id.
The present case is factually distinct from Gandolfo in several important
ways. Crucially, Owens, the jury could have concluded, gave a false alibi for his
whereabouts during the robbery, and even attempted to bribe another to
corroborate the false alibi. Owens was directly linked to the getaway truck,
which belonged to his best friend, English. Owens often had borrowed the truck,
the keys were accessible the day before the robbery, and Owens was seen before
and after the robbery at English’s home. Owens, therefore, had established links
to the robbery that Ritter lacked. Based on this circumstantial evidence, a
rational trier of fact could find beyond a reasonable doubt that Owens was the
individual who robbed the bank.
VI. Motion for a Mistrial
Finally, Kirkwood argues that the district court improperly denied her
motion for a mistrial. We review the denial of a mistrial for an abuse of
discretion. United States v. Elashyi, 554 F.3d 480, 507 (5th Cir. 2008) (citing
United States v. Le, 512 F.3d 128, 133 (5th Cir. 2007)).
Before trial, the government indicated that it did not object to Kirkwood’s
Motion in Limine Pursuant to Federal Rule of Evidence Rule 404(b). The district
court granted Kirkwood’s motion in limine, prohibiting the government from
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alluding to alleged misconduct by Kirkwood before the district court ruled on the
admissibility of that evidence. At trial during Kirkwood’s cross-examination,
Kirkwood was questioned concerning whether she knew there was a 9mm pistol
in her dresser drawer, and she testified that she did not. The prosecutor then
asked about what the dresser was used for and about the large box of
ammunition that was found next to the gun. When the prosecutor asked if there
was a digital scale next to the gun in the drawer, Kirkwood objected that the
prosecutor was trying to suggest that Kirkwood was involved in questionable or
illegal activities. The government responded that it was asking if Kirkwood
knew what else was in the drawer, which happened to be a digital scale.
The district judge sustained Kirkwood’s objection but denied Kirkwood’s
accompanying motion for a mistrial. The district court stated:
I sustain your objection, I think it is improper. I think it is -- if he
went any further would be highly prejudicial, but not enough for a
mistrial. Overruled.
Counsel, I say this on the record: I agree with counsel for the
defense and I think it is the same thing as essentially holding a half
bottle of bourbon whiskey sitting on the table throughout a jury trial
in a DWI case without introducing it. So don’t bring anything like
that up again, please.
Although Kirkwood argues that the mention of the digital scale violated
her Motion in Limine Pursuant to Federal Rule of Evidence Rule 404(b), the
district court would only have abused its discretion in denying the motion to
dismiss if “there is a significant possibility that the prejudicial evidence had a
substantial impact upon the jury verdict, viewed in light of the entire record.”
Elashyi, 554 F.3d at 507 (quoting Le, 512 F.3d at 133) (internal quotation marks
omitted). Kirkwood has not met this standard.
The motion in limine barred the government from mentioning “‘any
evidence of extrinsic or extraneous offense, uncharged criminal conduct,
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No. 10-40707
unalleged overt acts, or specific acts of misconduct’” before serving notice to the
court. However, no evidence of a bad act was heard by the jury because
Kirkwood did not endorse the prosecutor’s suggestion that she had knowledge
of or possessed the scale. Kirkwood answered the government that she did not
know if there was a digital scale in her dresser drawer, that she did not see one,
and that one should not be there. As the district court instructed the jury,
“[r]emember that any statements, objections, or arguments made by the lawyers
are not evidence.” Since jurors are presumed to follow the instructions given to
them by the court, the government’s reference to the digital scale would have
been disregarded. See Marsh, 481 U.S. at 211. The district court acted within
its discretion when it chose to address any potential prejudice by sustaining
Kirkwood’s objection rather than granting a mistrial.
Even if, as Kirkwood argues, she was prejudiced by the reference to the
digital scale, the prejudice was not so severe as to warrant a mistrial. A
photograph of the digital scale had already been entered into evidence and
shown to the jury without an objection by Kirkwood. Immediately after
Kirkwood’s objection to the questioning at issue, the government again showed
the jury the picture of the junk drawer in which the digital scale was pictured
next to the gun and ammunition. Kirkwood did not object. Though the digital
scale was not specifically identified in the picture either time it was shown to the
jury, the prejudice from an isolated question about the digital scale, with a
sustained objection thereto, is not so much greater than any reaction stemming
from the jury actually seeing the scale to warrant a mistrial.
Furthermore, the district court properly determined that a single reference
to a digital scale, without more, was “not enough” to warrant a mistrial. In
United States v. Le, this court held that the mention of the defendant’s parole
status during opening statements, the testimony of a government witness, and
closing arguments did not warrant overturning the district court’s denial of a
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No. 10-40707
motion for a mistrial. 512 F.3d at 134. The court determined that, “[t]hese three
references were a very small part of the trial” and that the evidence first came
out during opening statements without an objection, meaning the jury already
had the information that was the basis for the motion. Id. As a result, we held
that, “[t]he references to Le’s parole status did not have a ‘substantial impact
upon the jury’s verdict.’” Id. (citing United States v. Paul, 142 F.3d 836, 844 (5th
Cir. 1998) (explaining that the defendant failed to show that the district court
abused its discretion by denying the motion for a mistrial when the references
at issue were “isolated remarks that were not dwelled upon by the parties”)).
In the instant case, the digital scale was not mentioned again during the
trial. It was mentioned only in passing during Kirkwood’s lengthy cross-
examination by the government and Owens’s counsel. The reference was an
isolated remark and was not dwelled upon; hence, the district court did not
abuse its discretion when it denied Kirkwood’s motion for a mistrial.
V. Conclusion
The district court did not abuse its discretion when it denied Kirkwood’s
motion to sever, Owens’s motion to sever, and Kirkwood’s motion for a mistrial.
There was sufficient evidence to support the jury’s decision to convict Kirkwood
and Owens. We AFFIRM both Owens’s and Kirkwood’s convictions.
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